August 9, 1996

In re: Wendell Hale/Office of the Associate Chief Medical Examiner


This matter comes to the Attorney General as an appeal by Wendell Hale in connection with his request for access to particular documents.

In a letter to the University of Kentucky Department of Pathology, Chief Medical Examiner's Office, Lexington, Kentucky, dated June 16, 1996, Mr. Hale made the following request relative to an autopsy performed on Harry K. Hensley on May 20, 1984:

I'm contacting you in an effort to acquire the Request Form and Results of a SMA-6 test which was conducted during an autopsy, ME-84-05-122. This request is being made in accordance to KRS-61 of the Kentucky Open Records Act.

On July 15, 1996, this office received a letter of appeal from Mr. Hale stating in part that he had not received an answer from the University of Kentucky concerning his request for access to documents.

This office sent its Notification of Receipt of Open Records Appeal to Mr. Hale and to Mr. George DeBin, Official Records Custodian of the University of Kentucky, on July 17, 1996.

On July 24, 1996, this office received a copy of a letter sent to Mr. Hale on July 17, 1996, by John C. Hunsaker, III, M.D., Associate Chief Medical Examiner, Associate Professor of Pathology, Department of Pathology and Laboratory Medicine, Division of Forensic Pathology, Central Laboratory, in Frankfort, Kentucky, who advised as follows:

On July 12, 1996, I retrieved the archival case file folder pertaining to the autopsy of Mr. Harry K. Hensley. A thorough search of that folder fails to disclose the presence of the report pertaining to SMA-6 on the vitreous humour taken at autopsy from the decedent.

Beyond that I contacted staff in the Clinical Laboratory, specifically, the Division of Chemical Chemistry at the University of Kentucky Medical Center. This was the laboratory section analyzing vitreous humour chemistry for the Lexington-based Medical Examiner at that time. These staff members indicate that there are no records either to confirm that indeed that analysis was performed or to memorialize the results of such testing, if indeed it were performed.

Accordingly, I regret to inform you that I am unable to send you a copy of this report for these reasons. Moreover, I know of no other agency that would have custody and control of such a document.

On July 26, 1996, this office received from Mr. DeBin a copy of Dr. Hunsaker's letter to Mr. Hale. Mr. DeBin had contacted the University's Department of Pathology in the College of Medicine who in turn contacted Dr. Hunsaker. All existing records relating to the autopsy in question, Mr. DeBin advised, are in Frankfort rather than in Lexington.

KRS 61.880(1) requires in part that a public agency respond in writing within three business days after the receipt of a request for access to public records. While the public agency did not respond within the mandated three day time frame, that procedural deficiency is mitigated by the fact that the requesting party sent the request to the wrong city and the public agency has made a diligent search in two cities for the requested material.

What was said by this office in 94-ORD-140, copy enclosed, is dispositive of the issue presented by this appeal. Rather than repeating verbatim what was said in that decision we will briefly summarize its contents and refer the parties to that decision for a more complete analysis of the topic.

As stated in 94-ORD-140 a public agency cannot furnish a copy of a document which does not exist or which it does not have in its possession or custody. Generally, it is not the duty of this office to conduct an investigation in an attempt to locate a document which the requesting party maintains exists but which the public agency states does not exist.

This office said in 94-ORD-140 that 1994 amendments to the Open Records Act recognized an essential relationship between the content of the Open Records Act and KRS 171.410 to KRS 171.740 pertaining to the management of public records. While there may be instances when the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries.

The Attorney General has no reason to doubt the statements of the Associate Chief Medical Examiner that the requested document relating to the 1984 autopsy is not in his files and its existence is unknown to him. The response of the public agency was proper and consistent with the provisions and requirements of the Open Records Act in that the public agency cannot make available a document which does not exist or is not in its possession or custody. The public agency has made a good faith attempt to locate the requested document by searching record depositories in two cities.

A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action filed in circuit court, but the Attorney General shall not be named as a party in that action or in any subsequent proceeding.



Thomas R. Emerson

Assistant Attorney General


Copies of this decision

have been submitted to:

Wendell Hale

Eastern Kentucky Correctional Complex

P.O. Box 636

West Liberty, Kentucky 41472

John C. Hunsaker, III, M.D.

Associate Chief Medical Examiner

Associate Professor of Pathology

Dept. Of Pathology and Laboratory Medicine

Division of Forensic Pathology

Central Laboratory Facility

100 Sower Blvd., Suite 202

Frankfort, Kentucky 40601-8272

George J. DeBin, Official Records Custodian

11 Administration Building

University of Kentucky

Lexington, Kentucky 40506-0032